Saturday, June 21, 2014

Fate of int'l law at stake

China's act of locating its oil rig in waters near the Paracels is more than a dispute over sovereignty, it is also a dispute about the international law of the sea.

by Nguyen Thi Lan Anh

It has been more than a month since the East Sea (South China Sea) was again stirred up near the Paracel Islands. Forty years ago, in January 1974, the Paracels were a battlefield between China and the then South Viet Nam.

In taking control of the islands from South Viet Nam, China sank one South Vietnamese naval ship and damaged four others, leaving 53 Vietnamese killed and 16 injured. The battle resulted in China obtaining full control of the Paracels for the first time.

More than sovereignty

Viet Nam's sovereignty claim over the Paracel Islands is based on the Nguyen dynasty occupation and administration of the Paracels and Spratly islands from at least the 17th century when the islands belonged to no one, although Vietnamese fishermen have been fishing in the sea area for thousands of years. During the period of Western colonial expansion sovereignty over the Paracels was continuously exercised by France, the colonial ruler of Viet Nam.

Sovereignty later passed from France to South Vietnam under the 1954 Geneva Accords, and it then passed by succession to the Socialist Republic of Viet Nam when North and South Viet Nam were united in 1975. Viet Nam has continued to assert its claims to sovereignty by protesting activities conducted by China in the Paracels.

Although Viet Nam's claim to the Paracels has a strong legal basis, China insists that it has "indisputable" sovereignty. China refuses to discuss the sovereignty issue with Viet Nam in bilateral negotiations. Also, China will not agree to refer the sovereignty dispute to an international court or tribunal.

The act which made the Paracel Islands the latest hotspot in the South China Sea was China's placement of the Haiyang Shiyou 981 oil rig deep inside Viet Nam's exclusive economic zone (EEZ) and continental shelf, close to the islands.

At first, the oil rig controversy may look like a dispute over who has sovereignty over the Paracels. However, a closer look reveals that it is also a dispute about the international law of the sea.

Distance no issue

Triton Island in the Paracels, near which China is locating the deep-water oil rig HD-981, is a 1.6 km2 sand and coral cay that cannot sustain human habitation or economic life of its own. Consequently, under the 1982 Convention on the Law of the Sea (UNCLOS), it is a "rock" that can generate no more than a 12 nautical mile territorial sea.

Even if some other islands in the Paracels are, in principle, entitled to an EEZ and continental shelf, China's claim of the sea area is groundless for two reasons.

First, since both Viet Nam and China claim sovereignty over the Paracels, any EEZ claimed from the Paracels is an area in dispute. Second, the rig is in an area of overlapping claims because it is within the EEZ and continental shelf claimed by Viet Nam from its mainland as well as within the supposed EEZ from the Paracels.

According to the practice of states in maritime boundary delimitations, Triton Island and the other islands of the Paracels should be given "reduced effect" in drawing the maritime boundary because the length of coastline of the small islands is much shorter than the coastline of Viet Nam.

China and Viet Nam have followed this practice in negotiating their maritime boundary. In delimiting their limited maritime boundary in the northern-most section of the Gulf of Tonkin, the two States agreed to give only 25 per cent effect to Bach Long Vi Island, a Vietnamese island located there. This was the case even though the island has an area of 2.33 km2 and a permanent population.

In any case, since there is no agreed maritime boundary in this area, the argument that the rig is located closer to the Paracels than to the Vietnamese coast is not relevant. The rig is located in an area where China cannot exercise exclusive rights.

Rig move violates DOC

The true basis for China's claim to the natural resources in Viet Nam's EEZ is not an EEZ claim from the Paracels, but its claim to rights and jurisdiction over all the natural resources with the nine-dash line that Beijing has demarcated on its map of the South China Sea. Without providing any official documents supporting this claim or its legal basis under international law, the nine-dash line map is being used by China to claim rights to all the natural resources in and under the waters inside the line, even when they are in the EEZ of other States.

China is basing its claim on the nine-dash line map because the areas with high oil and gas potential off the coast of Viet Nam are all located outside the areas that China could claim under the international law of the sea. Therefore, China has decided to ignore the international law of the sea, and assert claims based upon its nine-dash line map, which includes up to 85 per cent of the South China Sea.

Under the law of the sea, until an agreement has been reached between China and Viet Nam on the maritime boundary in overlapping maritime claims, the two States are under a legal obligation to make every effort to enter into provisional arrangements of a practical nature. The international law of the sea also imposes an obligation on China and Viet Nam not to undertake any unilateral activities that would jeopardise or hamper the negotiation of a final boundary agreement.

International tribunals have ruled that in an area of overlapping maritime claims, it is unlawful for one State to attempt to exploit the natural resources by drilling because such a unilateral activity would permanently change the status quo and thus jeopardise or hamper the negotiation of a final boundary agreement.

In its discussions with ASEAN on a legally binding Code of Conduct for the South China Sea (East Sea), China has consistently maintained that there must be full and effective implementation of the 1992 Declaration on Conduct of Parties in the South China Sea (DOC). However, China's act of unilateral drilling is a clear violation of the provision in the DOC which provides that the Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes.

It is hoped that China will soon understand that bullying neighbouring countries in violation of international law is not the way a responsible power behaves in the international arena.

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Nguyen Thi Lan Anh is the Vice Dean at the International Faculty of the Diplomatic Academy of Viet Nam. The views expressed in this commentary are her own and do not necessarily reflect any official position. She contributed this specially to RSIS Commentaries.